A State’s right of self-defence and the criterion of attribution

The determination of a state’s right of self-defence is a complex process. In order for the use of force to be justifiable as an act of self-defence several criteria have to be fulfilled. According to Article 51 of the Charter of the United Nations a right of self-defence only exists when an armed attack has occurred. This is interesting because it had for a long time been argued, by states and international organizations, that an attack executed by a non-state actor could not be considered an armed attack unless it was attributable to a state. This became evident in several situations during the later half of the 20th century such as in 1968 when Israel launched an attack on Lebanese territory arguing that it constituted an act of... (More)

The determination of a state’s right of self-defence is a complex process. In order for the use of force to be justifiable as an act of self-defence several criteria have to be fulfilled. According to Article 51 of the Charter of the United Nations a right of self-defence only exists when an armed attack has occurred. This is interesting because it had for a long time been argued, by states and international organizations, that an attack executed by a non-state actor could not be considered an armed attack unless it was attributable to a state. This became evident in several situations during the later half of the 20th century such as in 1968 when Israel launched an attack on Lebanese territory arguing that it constituted an act of self-defence. This use of force was condemned by the United Nations Security Council as would several similar attempts in the following years. After the terrorist attacks aimed at the World Trade Centre and the Pentagon on September 11, 2001, the United States declared war on terrorism and began an operation known as Operation Enduring Freedom. The right of self-defence was argued, by the United States, to provide the legal basis for this operation that targeted the terrorist organization Al Qaeda, believed to be responsible for the attacks, and the Taliban regime, which was considered the de facto government of Afghanistan. The argument of self-defence became accepted by the international community which suggested that a change in the law of self-defence had occurred. This thesis explores the development of the right of self-defence in order to determine when a change could have taken place and more importantly what had changed. I arrive at a conclusion that the right of self-defence did not change in the days in between 9/11 and Operation Enduring Freedom. Instead the change occurred over time in the years previous to 9/11 and the attacks on the World Trade Centre and the Pentagon simply provided the circumstances necessary for this change to become apparent. The change consisted of a new interpretation of the concept of attribution which meant that an attack by a non-state actor could be imputable to a state on other grounds than previously. This change can be described as a pendulum swing which began with the Caroline case. At the time of that case attribution was not considered in relation to self-defence but the conclusion could still be made that attribution most likely would have been interpreted very widely. After the UN Charter was formed the criteria of attribution became more relevant. However, since this concept was new it would have been reasonable to assume it would be interpreted in the light of the Caroline case for example which would result in a wide interpretation. Instead attribution was interpreted narrowly during the later half of the 20th century. However the pendulum began to swing back and at the time of 9/11 attribution was once again believed to include various elements and was interpreted widely. This provide for the use of self-defence in more situations where attacks are carried out by non-state actors. (Less)

@misc{8873620,
abstract = {The determination of a state’s right of self-defence is a complex process. In order for the use of force to be justifiable as an act of self-defence several criteria have to be fulfilled. According to Article 51 of the Charter of the United Nations a right of self-defence only exists when an armed attack has occurred. This is interesting because it had for a long time been argued, by states and international organizations, that an attack executed by a non-state actor could not be considered an armed attack unless it was attributable to a state. This became evident in several situations during the later half of the 20th century such as in 1968 when Israel launched an attack on Lebanese territory arguing that it constituted an act of self-defence. This use of force was condemned by the United Nations Security Council as would several similar attempts in the following years. After the terrorist attacks aimed at the World Trade Centre and the Pentagon on September 11, 2001, the United States declared war on terrorism and began an operation known as Operation Enduring Freedom. The right of self-defence was argued, by the United States, to provide the legal basis for this operation that targeted the terrorist organization Al Qaeda, believed to be responsible for the attacks, and the Taliban regime, which was considered the de facto government of Afghanistan. The argument of self-defence became accepted by the international community which suggested that a change in the law of self-defence had occurred. This thesis explores the development of the right of self-defence in order to determine when a change could have taken place and more importantly what had changed. I arrive at a conclusion that the right of self-defence did not change in the days in between 9/11 and Operation Enduring Freedom. Instead the change occurred over time in the years previous to 9/11 and the attacks on the World Trade Centre and the Pentagon simply provided the circumstances necessary for this change to become apparent. The change consisted of a new interpretation of the concept of attribution which meant that an attack by a non-state actor could be imputable to a state on other grounds than previously. This change can be described as a pendulum swing which began with the Caroline case. At the time of that case attribution was not considered in relation to self-defence but the conclusion could still be made that attribution most likely would have been interpreted very widely. After the UN Charter was formed the criteria of attribution became more relevant. However, since this concept was new it would have been reasonable to assume it would be interpreted in the light of the Caroline case for example which would result in a wide interpretation. Instead attribution was interpreted narrowly during the later half of the 20th century. However the pendulum began to swing back and at the time of 9/11 attribution was once again believed to include various elements and was interpreted widely. This provide for the use of self-defence in more situations where attacks are carried out by non-state actors.},
author = {Lundström, Veronica},
keyword = {Public international law,Self-defence,Attribution,Armed attack},
language = {eng},
note = {Student Paper},
title = {A State’s right of self-defence and the criterion of attribution},
year = {2016},
}